BP Exploration Co (Libya) Ltd v Hunt [2014] NSWSC 1963 | Case summary

Relationship between the Regulations, the Adoption Act and the Convention

I will now turn to the complex considerations that I mentioned above concerning how the principles in this area of the law are apparently intended to operate. What set of rules govern adoptions from Convention countries?
The first issue for consideration is the identification of the rules that govern the making of an adoption order by this court, where the child has been habitually resident in a foreign country that has acceded to the Convention; and the second is the evidence that the court requires before it can find that those rules have been satisfied.
In particular, as to the first issue, a number of earlier decisions of this court have considered the interplay between provisions of the Adoption Act and the Regulations, in that, superficially, both the Adoption Act and the Regulations appear to provide competing sources of jurisdiction in the court to make an adoption order, in respect of a child formerly habitually resident in a Convention country.
Specifically, the question is: whether and in what circumstances should the provisions in the Adoption Act govern the making of an adoption order to the exclusion of the Regulations, or the Regulations should be applied to the exclusion of the Adoption Act, or some of the provisions contained in each should be applied?
In essence, the Convention contains rules and principles that are to govern, among other things, the adoption in one Convention country, by adoptive parents habitually resident in that country, of a child formerly habitually resident in another Convention country. The Convention was signed at The Hague on 29 May 1993, and ratified by Australia, and came into force on 1 December 1998. The mere fact that the Convention was ratified by Australia, and came into force as a treaty to which Australia became bound, did not, however, make the terms of the Convention part of the municipal law of Australia: Minister for Foreign Affairs and Trade v Mango (1992) 37 FCR 298 at 303 per Gummow J; and Minister for Immigration and Ethnic Affairs v Teoh (1998) 183 CLR 273 at 286-7 per Mason CJ and Deane J.
Section 111C(1) of the Family Law Act 1975 (Cth), which was included in the Family Law Act in 1995, authorised the making of regulations by the Australian Government to make such provision as is necessary or convenient to enable the performance of the obligations of Australia under the Convention. The Regulations were promulgated in 1998 for that purpose.
The effect of s 109 of the Commonwealth Constitution is that, if a provision of the Adoption Act, as a State act, is inconsistent with the Regulations, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid. Accordingly, if the provisions of the Regulations are entirely inconsistent with the relevant provisions of the Adoption Act, then the latter will be entirely invalid. If that were the case, then the Adoption Act could be ignored, and the application for the adoption order in the present case could be determined simply by applying the relevant provisions of the Regulations.
Unfortunately, the issue is not straightforward, as there are a number of ways in which the Adoption Act could continue to apply, at least in part, notwithstanding the existence of the Regulations.
In summary, first, the Adoption Act may apply if it is not inconsistent with the Regulations. Secondly, even if there is apparent inconsistency, so the Regulations would prevail to the extent of the inconsistency over the Adoption Act by reason of s 109 of the Constitution, there will in fact be no inconsistency if, and to the extent that, the terms of the Regulations specify that the Adoption Act should apply. Thirdly, even if the Regulations apply to the exclusion of the Adoption Act by reason of inconsistency, provisions of the Regulations may require that aspects of the Adoption Act be satisfied before an adoption order can be made under the Regulations.
Notwithstanding that the Regulations have been made under the Family Law Act, the Regulations make provision for the Supreme Court of New South Wales (and of the other States and Territories) to exercise jurisdiction under the Regulations for the purpose of making adoption orders. In the case of New South Wales the Supreme Court is invested with jurisdiction by reg 25.
The Regulations themselves provide, in reg 34, for circumstances in which the adoption laws of a State or Territory will apply, to the exclusion of the Regulations. Regulation 34(1) provides: 34 Application (1) A provision of these Regulations, except Regulations 5, 6, 7, 8, 9, 12 and 13, does not apply to a State in which there is in force a law (an intercountry adoption law) having the same effect as, or comparable effect to, that which the provision would, except for this regulation, have for the State. (The exception of the regulations in the reg 34(1) is immaterial for present purposes).
Accordingly, if the relevant provisions of the Adoption Act have the same, or comparable, effect to the equivalent provisions of the Regulations, the latter will not apply. If all relevant provisions of the Adoption Act were identical or comparable to the corresponding provisions in the Regulations, the present application would have to be dealt with under the Adoption Act.
The second of the possibilities that I have outlined above in par 45 may therefore apply. The Adoption Act may prevail because reg 34 of the Regulations requires that result.
The operative regulation, in the sense that it is the provision in the Regulations that contains the substantive rules governing the adoption in Australia of a child from a Convention country, is reg 15. It will be necessary to consider the meaning of reg 15 more fully below, but at this point it is necessary to consider that part of the regulation that provides: 15 Adoption in Australia of a child from a Convention country (1) This regulation applies in relation to an adoption that is to be granted in Australia, of a child who is habitually resident in a Convention country, by a person who is, or persons who are, habitually resident in Australia, if arrangements for the adoption are made in accordance with: (a) the Convention; and (b) the laws of the Commonwealth and the State of habitual residence of the person or persons proposing to adopt the child; and (c) the laws of the Convention country.
As the applicants in the present case are habitually resident in this State, the effect of reg 15(1)(b) is that, even if the Regulations govern the making of the adoption order (and are not excluded by the operation of reg 34), reg 15 will not be satisfied unless "arrangements for the adoption are made in accordance with the laws of [New South Wales]". In simple terms this means that provisions contained in the Adoption Act may have to be satisfied, even if the application for adoption is governed by the Regulations. Accordingly, even if provisions contained in the Adoption Act were otherwise inconsistent with provisions in the Regulations, so that they would be invalid by operation of s 109 of the Constitution, the provisions in the Adoption Act that govern the arrangements required to be made for an adoption, cannot be inconsistent, because the Regulations themselves require that the provisions be satisfied. Regulation 15(1)(b) has the effect that it will be necessary to return to consider what is meant by the term "arrangements" in this context. The use of the term gives rise to the possibility that some provisions in the Adoption Act may be required arrangements, but others may not.
Therefore, the third of the possibilities I have outlined above in par 45 may also apply. Are the provisions of the Adoption Act and the Regulations identical or comparable?
The principal authority that has addressed the two issues raised immediately above is the decision of White J in Re S and Adoption Act 2000 (NSW) (No 2), to which I have referred above. His Honour first considered the question whether, for the purposes of reg 34, the provisions of the Adoption Act have the same effect as, or are of comparable effect to, the equivalent provisions of the Regulations; and, secondly, what provisions of the Adoption Act are picked up by reg 15(1)(b) because they are "arrangements for adoption".
As will be seen, White J gave a negative answer to the first question.
White J readily acknowledged, at [53] and [54], that the New South Wales Parliament intended that the provisions of the Adoption Act should have the same effect, or comparable effect, to reg 15, so as to attract the operation of reg 34, with the consequence that the Adoption Act would govern this application rather than reg 15. This follows, first, from the terms of s 103 of the Adoption Act, which provides that the object of Divisions 1 to 3 of Part 2 of Chapter 5 of the Act is to provide for the application of provisions of State law that have effect, or comparable effect, to certain provisions of Commonwealth Law. The note to s 103 spells out that the effect of the section would be to attract the operation of reg 34. The intention of the Parliament could not have been clearer. Secondly, it flows from the explanatory note to Chapter 5 of the relevant Bill; and thirdly from the minister's second reading speech.
The expectation that applications for the adoption of children from Convention countries would be dealt with under the Adoption Act also appears to be reflected in UCPR Part 56, which is entitled "Matters Arising Under the Adoption Act 2000". Rule 56.8, which lists the evidence that must be provided in support of an application for an adoption order, includes, in par (b) "the facts and circumstances that give the Supreme Court jurisdiction in accordance with section 23, 106 or 107 of the Adoption Act 2000". The sections identified concern the court's jurisdiction to make inter-country adoptions from Convention countries.
White J noted later, at [41], that s 90(1) of the Adoption Act, which lists the matters of which the court must be satisfied before it can make an adoption order, contains par (g), which provides: 90 Court to be satisfied as to certain matters (1) The Court must not make an adoption order in relation to a child unless the Court is satisfied: … (g) if the child is a non-citizen child from a Convention country or other country outside Australia - that the applicable requirements of this Act and any other relevant law have been satisfied and [See for example, section 31]
This provision also makes it clear that the New South Wales Parliament intended that the court would make orders under the Adoption Act for the adoption of children from Convention countries.
However, White J concluded, at [55], that the objective was not achieved, in that the substantive requirements of Chapter 4 of the Adoption Act are different from the substantive requirements of reg 15(1). His honour further concluded, at [57], that the requirements are not comparable for the purposes of reg 34.
His Honour started, at [18], by posing for himself the question whether the Adoption Act is a law having the same effect as, or comparable effect to, reg 15.
His Honour set out the provisions of s 23 (which gives the court jurisdiction to make adoption orders with respect to the intercountry adoption of a child), and s 103 (the effect of which is set out above) and then s 107, which provides: 107 Adoption in NSW of child from Convention country by parents from NSW (1) The Court may, on application by the Director-General or the principal officer of an accredited adoption service provider that may provide intercountry adoption services, make an order for the adoption of a child who is habitually resident in a Convention country by a prospective adoptive parent or parents who are habitually resident in the State. Note. Part 3 of Chapter 4 provides for assessment of the suitability, and selection, of persons to adopt by the Director-General or principal officer. (2) The Court may make the order only if satisfied that: (a) the Central Authority of the Convention country has agreed to the adoption of the child, and (b) the child is allowed to reside permanently in Australia. (3) The Court must not make the order if the child is not in Australia. (4) For the purposes of subsection (2) (b), a child is not allowed to reside permanently in Australia if the child is affected by a law of the Commonwealth or the State, or by an order of a Commonwealth or State court, the effect of which is to prevent the child so residing.
White J noted, at [22], that s 107 incorporates in substance the requirements of reg 15(3). That sub-regulation provides: (3) The court may make the order only if it is satisfied that: (a) the Central Authority of the Convention country has agreed to the adoption of the child; and (b) the State Central Authority of the State in which the applicant or applicants habitually reside has agreed to the adoption of the child; and (c) the child is allowed to reside permanently in Australia.
Section 107(2)(a) of the Adoption Act is effectively the same as reg 15(3)(a). Section 107(2)(b) is the same as reg 15(3)(c), and the substantial equivalent of reg 15(3)(b) is found in the fact that the Central Authority of the State of New South Wales is represented by the Director-General, and to the extent that the Director-General is required to make the application, it should follow that the requirements of reg 15(3)(b) are satisfied. (The equivalence of the two provisions is not complete, to the extent that s 107 permits the application to be made by the principal officer of an accredited adoption service provider).
White J then said, at [32], that s 107 is silent as to whether it authorises the making of an adoption order that is separate from the requirements of Chapter 4 of the Adoption Act, or whether that chapter contains the rules for the making of an adoption order under s 107. If s 107 is a stand-alone provision, in that it does not pick up Chapter 4, then it will not have the same effect as reg 15, because it does not require satisfaction of the provisions of reg 15(1).
His Honour, at [24,] considered the submission by the Director-General in the case before him based upon the note to s 107(1), that Chapter 4 was intended to contain the substantive provisions governing both Convention and non-Convention applications, and restated the question that he had posed at [18], at [26], by expressing it as being whether the effect of Chapter 4 of the Adoption Act (read with s 107) is the same as, or comparable to, the effect of reg 15.
White J then considered the provisions in Chapter 4 of the Adoption Act, to determine the answer to this question (see [27] - [45]), and concluded, at [46], that the effect of Chapter 4 of the Adoption Act, in so far as it applies to the adoption of a child from a Convention Country, is substantially different from the effect of the Regulations.
As I understand his Honour's reasoning, he found, by this process of comparison with the provisions of the Regulations, the following substantive differences that prevent the provisions of the Adoption Act and the Regulations from being identical (which I have put in a simplified way, and without a detailed exposition of his Honour's reasoning): 1. There are significant differences between the provisions in Ch 4 concerning the requirement for consent to the adoption order being made; the requirements before consents that are given are effective; and the circumstances in which the need for consent may be dispensed with; and the Convention, which imposes upon the competent authority of the State of origin the obligation to ensure that necessary consents are obtained, and the circumstances required for those consents to be effective. There is no equivalent provision to that which provides that the consent of the child's parents can only be dispensed with in circumstances corresponding to s 67(1)(a)-(d) of the Adoption Act. (In this regard there is no equivalent to the requirement in s 90(1)(d) that every consent to the adoption required by the Adoption Act has been given, or dispensed with in accordance with that Act). 2. There is no requirement in reg 15 that requires that the court be satisfied that the best interests of the child will be promoted by the adoption (as is required by s 90(1)(a) of the Adoption Act), unless it is found in the requirement in reg 15(1)(b) that the arrangements for the adoption have been made in accordance with the laws of New South Wales. (The effect of reg 15(1)(a) and Arts 4(b) and 16(1)(d) of the Convention is that it is a matter for the competent authorities of the State of origin, rather than the Supreme Court of New South Wales, to decide that the adoption is in the best interests of the child). 3. There may be no equivalent in reg 15 of the requirement in s 90(1)(b) that, as far as practicable and having regard to the age and understanding of the child, the wishes and feelings of the child have been ascertained, and due consideration given to them. (I note, however that reg 15(1)(a), and Art 16(1)(c) and Art 4(d) may have that effect). 4. The apparently applicable provisions of the Adoption Act (s 90(1)(g) and s 31) do not require the court to be satisfied that the arrangements for adoption were made in accordance with the Convention, which is a requirement in reg 15(1)(a). 5. Section 90(3) of the Adoption Act provides that the court may not make an adoption order unless it considers that the making of the order would be clearly preferable in the best interests of the child than any other action that could be taken by law in relation to the care of the child. There is no clear equivalent of this provision in reg 15.
It is White J's reason (1) that gives rise to the conclusion, to which I have referred above, that the court is not required to be satisfied that the birth parents of the child have consented to the adoption, and the court is not required to exercise any power to dispense with any necessity for consent. Articles 4 and 16(1)(c) of the Convention require that the Central Authority in the State of origin obtain, or ensure, the consents set out in those provisions. The Convention does not give the courts or the authorities in the receiving State any role in obtaining, or verifying, parental or any other consent. As that is one of the reasons why reg 34 does not apply, the provisions in the Adoption Act concerning consent, and dispensing with consent, do not apply.
For reasons that will appear more clearly below, it is necessary to consider the reasons that White J gave for conclusion (4), which were as follows: [42] Neither s 90(1)(g), nor s 31, requires the Court to be satisfied that the arrangements for adoption were made in accordance with the Convention. Section 31(1)(b) refers to the regulations relating to intercountry adoptions. The Adoption Regulation 2003 (NSW) contains no provisions requiring that the arrangements for adoption be made in accordance with the Convention. It may be arguable that the expression "relevant law" extends to the law of the country from which the child comes, so that the Court must be satisfied that the laws of the State of origin in relation to the adoption were satisfied. However, the expression does not cover the requirements of the Convention itself. The Convention is not a law. Neither the Adoption Act, nor the Family Law (Hague Convention on Intercountry Adoptions) Regulations provides that the Convention is to apply as a law of New South Wales or Australia. Accordingly, there is no requirement in s 90 that, before making an adoption order, the Court be satisfied that the arrangements for the adoption were made in accordance with the Convention… [52] Even if this is not the correct construction of reg 15(1)(b), it would not follow that Ch 4 of the Adoption Act had a comparable effect to that of reg 15. Even if reg 15(1)(b) required satisfaction of all of the requirements of Ch 4, nonetheless, there is nothing in the Adoption Act which requires an applicant for an adoption order for a child from a Convention country to show that the arrangements for the adoption were made in accordance with the Convention. It would follow that, on any view, the effect of the Adoption Act is not the same or comparable to the effect of reg 15.
White J's reference to "relevant law" in [42] concerns the requirement in s 90(1)(g) of the Adoption Act that "the applicable requirements of …. any other relevant law have been satisfied."
The decision in Re S (No 2) has been followed by Austin J in Re J and the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 (Cth); by White J himself in R E and the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 [2010] NSWSC 1313; and by Brereton J in Application of MGO and AAO. Austin J, said, at [3]: "Without the benefit of contested argument, I find White J's reasoning to be plausible and I think the proper course is to follow his decision in the circumstances of this case".
There is, with respect, one aspect of White J's reasoning in Re S (No 2) as to which I have some doubt. The doubt arises in respect of that part of his Honour's reasoning that led him to conclude that Chapter 4 of the Adoption Act does not contain any substantive requirement that the terms of the Convention must be satisfied before an adoption order can be made by the court under s 107: see (4) in par 67 above.
I have set out [42] and [52] of his Honour's reasons above in par 69. At [42] he concluded that neither s 90(1)(g), nor s 31, requires the court to be satisfied that the arrangements for adoption were made in accordance with the Convention. The former provision requires, as I have noted above in par 70, that, if the child is a non-citizen child from a Convention country, the court must not make an adoption order in relation to the child unless it is satisfied that the applicable requirements of the Act and any other relevant law have been satisfied. His Honour considered whether the Convention itself is encompassed within the expression "any other relevant law", but concluded: "The Convention is not a law. Neither the Adoption Act, nor the… Regulations provide that the Convention is to apply as a law of New South Wales or Australia. Accordingly, there is no requirement in s 90 that, before making an adoption order, the court be satisfied that the arrangements for the adoption were made in accordance with the Convention".
The Convention is incorporated into the Adoption Act in Schedule 1. As a matter of statutory interpretation, ordinarily the mere fact that an international treaty has been included in an act of Parliament as a schedule, does not have the effect that the provisions of the treaty become part of the domestic law: Dietrich v R (1992) 177 CLR 292 at 305 per Mason CJ and McHugh J, and at 359-60 per Toohey J; and Minogue v Williams [2000] FCA 125; (2000) 60 ALD 366 at 372-3 per Ryan, Merkel and Goldberg JJ.
However, the Adoption Act contains s 210, which provides: "Schedule 1 has effect". In Re Susan [2009] NSWSC 592 Palmer J, at [82], noted that the Convention had been adopted by s 210 of the Adoption Act, but his Honour had no need to explore the consequences. The position is different in Victoria, Queensland and Western Australia, where the Convention is included as a schedule to the respective Adoption Acts, but there is no equivalent to s 210.
The usual effect in a statute of the use by the Parliament of the expression "has effect" in relation to an identified document or circumstance is that, by that short expression, the document or circumstance is given legislative effect, and becomes law.
It appears that the Parliament of New South Wales has made the Convention part of the law of the State. The question is whether that makes a material difference to the conclusions reached by White J in Re S (No 2).
If it is accepted that s 210 has made the Convention part of the law of New South Wales, then it is relatively easy to conclude that it is a relevant law. If this reasoning is correct, then it, with respect, jeopardises the validity of the fourth of the five reasons that White J identified as to why the Adoption Act did not have the same, or comparable, effect to reg 15 of the Regulations.
Notwithstanding the possible effect of s 210 of the Adoption Act that I have outlined above, in my opinion the conclusion which White J reached remains correct, and I will follow the decision of White J in Re S (No 2). Even if there is some doubt about reason (4), the other reasons remain sound, with respect. The effect of reason (2) is that, under the Adoption Act, the court is given the role of deciding whether the proposed adoption will be in the best interests of the child. The Regulations give that power to the Central Authority of the State of origin (Art 16(1)(d)), and to the "competent authorities" of that State (Art 4(b)). That difference is, in my view, decisive in negating the identity between the relevant provisions of the Adoption Act and of the Regulations, and the other reasons stated by White J reinforce that conclusion.
It is then necessary to consider whether any doubt about the validity of reason (4) affects the validity of White J's conclusion that the equivalent provisions of the two laws are not comparable.
I accept the reasoning of White J (at [58]-[60]) as to why in this context "comparable" has the same meaning as "similar". White J stated, at [57], that he did not consider that the requirements of the two laws were comparable "for the reasons I have given", which suggests that his Honour was of the view that the circumstances that made the two laws not identical also had the effect that they were not comparable. White J identified as a specific reason for that conclusion that the requirements under the Adoption Act "dispensing with consents to adoption constitute a notable difference". Thus, his Honour specifically found that the two laws were not comparable because of the existence of his first reason, rather than his fourth. I respectfully agree that the two laws are not relevantly comparable.
I would add that, in my view, the use of the word "comparable" in reg 34 is unsatisfactory, as there are no readily discernible objective criteria for determining when two laws are comparable; that is, sufficiently similar, in this context. Regulation 34 effectively invites the court to decide when near enough is good enough. It arguably requires the making of a legislative determination rather than a judicial one What provisions of the Adoption Act are "arrangements" for adoption?
White J then dealt with the significance of that part of reg 15(1)(b), which is set out above in par 50, which requires that the arrangements for the adoption have been made in accordance with the laws of the State of habitual residence of the persons proposing to adopt the child (being New South Wales). His Honour recognised that if the "arrangements" encompass all of the adoption process described in Chapter 4 of the Adoption Act, then the result may be that the relevant provisions of the Adoption Act do have the same effect, or are comparable to the effect of, the relevant provisions of the Regulations. The possibility of their being a conceptual merry-go-round arises, if reg 34 raises the question of whether the provisions of the Adoption Act are the same as or comparable to the provisions of the Regulations; upon analysis it appears that they are not; but then the Regulations separately require all of the provisions of the relevant Adoption Act to be applied.
His Honour found in relation to this issue: [48] The question is what is meant by the expression "arrangements for the adoption"? It might be said that all of the adoption process described in Ch 4 describes the arrangements to be made for the adoption of a child under New South Wales law. In my view, that would not be the correct construction. The expression "arrangements for the adoption" is to be understood in the light of the Convention. The purpose of the regulations was to enable the Convention to be implemented in Australia. The Convention provides the context for the construction of the Regulations. [49] The meaning of the expression "arrangements for the adoption" is not to be gleaned from the different State and Territory legislation relating to adoption. Such a process would not reveal any consistent use of that expression between the States and Territories. Some States, such as Victoria and Tasmania, deal with certain matters under the heading "Arrangement of Adoptions" Adoption Act 1984 (Vic), ss 20-32; Adoption Act 1988 (Tas), ss 9-17. Those States deal with matters such as consents to adoption, and the making of adoption orders, under different headings. Some States, such as New South Wales, do not use the expression to describe particular parts of their legislation. [50] In my view, the proper construction of reg 15(1)(b) is that it requires the Court to consider what are the requirements of the State of habitual residence of the prospective adopting parents, so far as they are applicable under the Convention to the arrangements to be made for the adoption of the child. In particular, the determination of the receiving State under Art 5 of the Convention that the prospective adoptive parents are eligible and suited to adopt, that they have been given counselling as may be necessary, and that the child is, or will be authorised, to enter and reside permanently in the State, must be effected in accordance with the laws of the receiving State. Likewise, any law regulating the preparation of the report by the Central Authority of the receiving State under Art 15 of the Convention must be complied with if reg 15(1)(b) is to be satisfied. [Emphasis added] [51] However, the expression does not mean that all of the requirements of New South Wales law for the making of an adoption order under Ch 4 must be satisfied. [52] Even if this is not the correct construction of reg 15(1)(b), it would not follow that Ch 4 of the Adoption Act had a comparable effect to that of reg 15. Even if reg 15(1)(b) required satisfaction of all of the requirements of Ch 4, nonetheless, there is nothing in the Adoption Act which requires an applicant for an adoption order for a child from a Convention country to show that the arrangements for the adoption were made in accordance with the Convention. It would follow that, on any view, the effect of the Adoption Act is not the same or comparable to the effect of reg 15.
The effect of White J's reasoning appears to be as follows. His starting point was a concern about the effect of Reg 15(1)(b), in so far as it applies "if arrangements for the adoption are made in accordance with…the laws of [New South Wales]". Does that provision require that all of the requirements of the Adoption Act be satisfied, or does the expression "arrangements for the adoption" have a narrower meaning, so that only some aspects of the Adoption Act have to be satisfied? If the latter, what is the basis for identifying the provisions that require satisfaction?
His Honour rejected the conclusion that all of the provisions of the Adoption Act have to be satisfied. He found that only some of the provisions concern the "arrangements for adoption". He identified those provisions by looking to the Convention to identify the relevant arrangements. This appears from his use of the expression "so far as they are applicable under the Convention", which I have emphasised in the extract from [50] of his Honour's reasons. He did not review the Adoption Act to distinguish between provisions that concerned "arrangements for adoption", and other provisions, which did not. As the whole purpose of the Regulations is to implement the requirements of the Convention in Australia, he looked to the Convention to find the arrangements for adoption that the Convention requires be implemented. Effectively, this interpretation reads reg 15(1)(b) as if the following words in italics are to be read into the regulation: "if arrangements for the adoption required by the Convention are made in accordance with… (b) the laws of…the State…"
The practical effect is that it is necessary to identify all of the arrangements for the adoption that the Convention requires are to take place in the receiving State, and then be satisfied that those arrangements conform to the local law of that State. To the extent that the local law of the State requires additional, or different, arrangements to be made, that would be immaterial.
White J identified the provisions of the Adoption Act that are arrangements for adoption, for the purposes of reg 15(10(b) of the Regulations, in [50].
Presumably, by parity of reasoning, reg 15(1)(c) would require that the arrangements for adoption that the Convention requires be carried out in the State of origin should conform to the local law of that State. It is not necessary that all of the adoption laws of the State of origin be complied with, or even the "arrangements for adoption" under that law. Rather, the arrangements for adoption that the Convention requires take place in the State of origin must satisfy the local law of the State of origin that governs those matters.
The interpretation of reg 15 preferred by White J has the benefit that there is only one source of the substantive requirements that must be satisfied before an inter-country adoption between Convention countries can lawfully be made. That is the Convention, which identifies all of the necessary arrangements, and the only field of operation of the local law of the two States is that the arrangements required by the Convention to be undertaken in each State must conform to the law of that State.
If White J's interpretation is not adopted, then three separate sources of law might impose substantive requirements for the lawfulness of an adoption, and there may be the possibility of inconsistency between the requirements of the Convention and one or both of the States, or between the laws of the two States. That is undesirable, and could make the scheme intended to be created by the Convention unworkable. One example may be the difference between how the Adoption Act treats the requirements for consent (see ss 52 to 74), and Arts 16(1)(c) and 4(c) and (d) of the Convention, which refer the issue of consent to the competent authorities and the law of the State of origin. Arrangements for adoption in the receiving state
The next step is to identify the arrangements for adoption under the laws of the receiving State and the State of origin that are required by reg 15(1)(b) and (c) to be satisfied in accordance with the respective laws of those States.
In relation to the former White J said in Re S and Adoption Act 2000 (NSW) (No 2): [50] … In particular, the determination of the receiving State under Art 5 of the Convention that the prospective adoptive parents are eligible and suited to adopt, that they have been given counselling as may be necessary, and that the child is, or will be authorised, to enter and reside permanently in the State, must be effected in accordance with the laws of the receiving State. Likewise, any law regulating the preparation of the report by the Central Authority of the receiving State under Art 15 of the Convention must be complied with if reg 15(1)(b) is to be satisfied.
I respectfully agree with his Honour (but add the relatively straightforward requirement that arises out of Art 14 to the matters that must be effected in accordance with the laws of the receiving State: this should usually be uncontroversial). White J has identified the following arrangements as being required by the Convention to be taken in the receiving State (I have added (4)): 1. The competent authorities of the receiving State must determine that the prospective adoptive parents are eligible and suitable to adopt: Art 5(a). 2. The competent authorities of the receiving State must have ensured that the prospective adoptive parents have been counselled as may be necessary (by implication, under the law of that State): Art 5(b). 3. The competent authorities of the receiving State must have determined that the child is or will be authorised to enter and reside permanently in that State: Art 5(c). 4. Persons habitually resident in the receiving State, who wish to adopt a child habitually resident in another Contracting State, must apply to the Central Authority in the State of their habitual residence: Art 14. 5. If the Central Authority of the receiving State is satisfied that the applicants are eligible and suited to adopt, it shall prepare a report including information about their identity, eligibility and suitability to adopt, background, family and medical history, social environment, reasons for adoption, ability to undertake an intercountry adoption, as well as the characteristics of the children for whom they would be qualified to care: Art 15. Arrangements for adoption in the State of origin
White J did not explore the arrangements for the adoption that the Convention requires be satisfied under the law of the State of origin. As I have noted above, White J found, in the case before him, that those arrangements satisfied the law of the State of origin, because of the ruling of a court in that State, and the steps taken by the relevant government department to approve the adoption: see Re S (No 2) [77] and [78].
His honour did not specifically identify the relevant arrangements for adoption.
As the words "if arrangements for the adoption are made in accordance with" in the chapeau to reg 15(1) apply equally to the subject matters of pars (b) and (c), they should have the same meaning in both cases.
Adopting the same process to identify the arrangements that was used to find the arrangements that arise under the law of the receiving State, the arrangements for adoption in the State of origin are: 1. The competent authorities of the State of origin must have established that the child is adoptable: Art 4(a). 2. The competent authorities of the State of origin must have determined, after possibilities for placement of the child within the State of origin have been given due consideration, that an intercountry adoption is in the child's best interests: Art 4(b). 3. The competent authorities of the State of origin must have ensured that the persons, institutions and authorities whose consent is necessary for adoption, have been counselled as may be necessary, and duly informed of the effects of their consent, in particular whether or not an adoption will result in the termination of the legal relationship between the child and his or her family of origin: Art 4(c)(1). 4. The competent authorities of the State of origin must have ensured that such persons, institutions and authorities (whose consent is necessary for adoption) have given their consent freely, in the required legal form, and expressed or evidenced in writing; Art 4(c)(2). 5. The competent authorities of the State of origin must have ensured that the consents have not been induced by payment or compensation of any kind and have not been withdrawn: Art 4(c)(3). 6. The competent authorities of the State of origin must have ensured that the consent of the mother, where required, has been given only after the birth of the child: Art 4(c). 7. The competent authorities of the State of origin must have ensured, having regard to the age and degree of maturity of the child, that he or she has been counselled and duly informed of the effects of the adoption and of his or her consent to the adoption, where such consent is required: Art 4(d)(1). 8. The competent authorities of the State of origin must have ensured, having regard to the age and degree of maturity of the child, that consideration has been given to the child's wishes and opinions: Art 4(d)(2). 9. The competent authorities of the State of origin must have ensured, having regard to the age and degree of maturity of the child, that the child's consent to the adoption, where such consent is required, has been given freely, in the required legal form, and expressed or evidenced in writing: Art 4(d)(3). 10. The competent authorities of the State of origin must have ensured, having regard to the age and degree of maturity of the child, that such consent (of the child) has not been induced by payment or compensation of any kind: Art 4(d)(4). 11. If the Central Authority of the State of origin is satisfied that the child is adoptable, it shall prepare a report including information about his or her identity, adoptability, background, social environment, family history, medical history including that of the child's family, and any special needs of the child: Art 16(1)(a). 12. If the Central Authority of the State of origin is satisfied that the child is adoptable, it shall give due consideration to the child's upbringing and to his or her ethnic, religious and cultural background: Art 16(1)(b). 13. If the Central Authority of the State of origin is satisfied that the child is adoptable, it shall ensure that consents have been obtained in accordance with Article 4: Art 16 (1)(c). (This requirement duplicates that which flows from Art 4). 14. If the Central Authority of the State of origin is satisfied that the child is adoptable, it shall determine, on the basis in particular of the reports relating to the child and the prospective adoptive parents, whether the envisaged placement is in the best interests of the child: Art 16(1)(d).
If this is a correct list of the arrangements for adoption that are required to take place in the State of origin, then the effect of reg 15(1)(c) is that these arrangements must each be implemented in accordance with the law of that State.
Arrangements (6) to (10) will not arise in cases where the child is so young that it is unable to consent to its own adoption. Arrangement (13) substantially covers the same ground as arrangements (3) to (6). The only difference may be that Art 4 of the Convention requires the "competent authorities" of the State of origin to deal with the requirements for consent, and Art 16(1)(c) requires the Central Authority to ensure that Art 4 has been complied with in relation to obtaining consent.
It is notable that the only report that the Central Authority of the State of origin is required by Art 16(2) to prepare and transmit to the Central Authority of the receiving State is the report on the child that is required to be prepared by Art 16(1)(a). However, Art 16(2) also requires the Central Authority of the State of origin to transmit to the Central Authority of the receiving State: …proof that the necessary consents have been obtained and the reasons for its determination on the placement, taking care not to reveal the identity of the mother and the father if, in the State of origin, these identities may not be disclosed.
As a practical matter it is therefore possible that, before the adoption application is made to the court, the only documentary material that will have been received from the Central Authority of the State of origin is the Art 16(1)(a) report, and whatever material the Central Authority deems adequate to prove that the necessary consents have been obtained, and the reasons for its determination on the placement.
The purpose of the report prepared by the Central Authority of the State of origin is not to satisfy any court in the receiving State dealing with an adoption application that any requirements of the Convention have been complied with. Its purpose is to satisfy the Central Authority of the receiving State that it should make the decisions required of it to permit the adoption to proceed. The report may incidentally prove matters of which the court needs to be satisfied. For example, the report must deal with the "adoptability" of the child. That may prove the requirement (1) set out above in par 100, that the competent authorities of the State of origin must have established that the child is adoptable. It is arguable that the requirement in Art 16(2) that the Central Authority of the State of origin must transmit to the Central Authority of the receiving State "proof that the necessary consents have been obtained" should be interpreted as encompassing all of the requirements of Art 4 concerning consent, and thus go beyond the bare fact of consent, to include counselling, consent being free, legal forms being satisfied, and the absence of payment or compensation. It is also arguable that the requirement that there be transmitted "the reasons for its determination on the placement" requires the Competent Authority of the State of origin to provide proof of all of the steps that the Convention requires be taken. That might encompass all of the 14 requirements listed above. In practice it may be a matter of chance whether or not the evidence that is transmitted by the Central Authority of the State of origin to the Central Authority of the receiving State will satisfy the court that all of the arrangements for adoption under the law of the State of origin required by the Convention have, first, been made, and, secondly, that they have been made in accordance with the law of the State of origin.
There is no requirement in the Convention that any evidence be provided that all of the arrangements are in accordance with the law of the State of origin. It is likely only to be implicit in the material that is provided that the arrangements do accord with the relevant requirements of the law, or at least that the Central Authority of the State of origin believes that the relevant laws of that State have been satisfied.
The Convention does not provide any explicit role for the courts of the State of origin or the receiving State. It requires the "competent authorities" of those states to take specified steps: Arts 4 and 5. It obliges the Central Authority of each state to prepare and transmit reports, and to take identified steps: Arts 14 to 21.
The Convention does not provide for the performance of any formal act of adoption, whereby the child will become in law the child of the adoptive parents. Articles 17 to 21 deal with the steps that are required to be taken after the Central Authorities of the two States have prepared and transmitted the reports required by Arts 15 and 16. Article 17 governs the decision in the State of origin that a child should be entrusted to prospective adoptive parents. Article 18 requires the Central Authorities of both States to take all necessary steps to obtain permission for the child to leave the State of origin and to enter and reside permanently in the receiving State. Article 19 regulates the transfer of the child to the receiving State, and what is to occur if the transfer does not take place. Article 20 requires both Central Authorities to keep each other informed about the adoption process. Article 21 imposes obligations on the Central Authority of the receiving State, if it appears that the continued placement of the child with the prospective adoptive parents is not in the child's best interests.
However, Art 20 speaks of "the adoption process and the measures taken to complete it", and Art 21 is concerned with the case "where the adoption is to take place after the transfer of the child to the receiving State". The convention therefore contemplates that there will be a formal adoption process, but does not make any provision for the regulation of that process.
The Convention does not contain any provisions that oblige the Central Authority of the State of origin to provide to the Central Authority of the receiving State explicit and comprehensive evidence that the steps that the Convention requires be taken in the State of origin have been taken, and that those steps have been in accordance with the law of the State of origin.
While the Convention may be based upon an implicit assumption that all States which accede to the Convention will modify their local laws to ensure that those laws require all of the arrangements to be made that the Convention itself requires be made in the State of origin, the Convention does not actually require that to happen. It is assumed that the 14 steps that I have listed above in par 98 will occur. In particular cases they may in fact not specifically be required by the local law of the State of origin. Even if they are required, or comparable steps are required, they might not occur, and they might not be documented by the authorities of the State of origin, in a form that permits the court in the receiving State, on an application for adoption under the Convention, easily to satisfy itself that all of the steps have been taken, and that they are in accordance with the law of the State of origin.
The difficulty can be traced to the terms of reg 15(1)(c), which blithely assumes that the court will be able to satisfy itself that "the arrangements for the adoption have been made in accordance with… the laws of the Convention country". If the arrangements are not in accordance with those laws, then reg 15 will not apply to the adoption. That does not permit the court to solve the problem simply by having resort to the provisions of the Adoption Act, on the basis that the Regulations do not apply. That is because, in the general case such as the present, the problem does not arise because the court knows that arrangements have not been in accordance with the laws of the State of origin, but because the evidence is likely to give rise to uncertainty on that issue. If the adoption arrangements are in fact in accordance with the laws of the State of origin, then the court must apply reg 15.

Proof of requirements in Regulation 15

It is now appropriate to consider the requirements that must be satisfied before the court can make an adoption order under reg 15, and the evidence that may be required for that purpose.
Regulation 15 provides: Adoption in Australia of a child from a Convention country (1) This regulation applies in relation to an adoption that is to be granted in Australia, of a child who is habitually resident in a Convention country, by a person who is, or persons who are, habitually resident in Australia, if arrangements for the adoption are made in accordance with: (a) the Convention; and (b) the laws of the Commonwealth and the State of habitual residence of the person or persons proposing to adopt the child; and (c) the laws of the Convention country. (2) The person or persons proposing to adopt the child must apply to a court for an order that the child be adopted by the person or persons. (2A) The application must: (a) be in accordance with Form 3; and (b) include an affidavit in accordance with Form 2. (2B) At the same time as the application is made, the applicant, or applicants, must give a copy of the application to the State Central Authority for the State: (a) if the application is made by 1 applicant -- where the applicant habitually resides; or (b) if the application is made by more than 1 applicant -where the applicants habitually reside. (2C) The State Central Authority: (a) no later than 5 working days before the court hearing, may file with the court a statement in accordance with Form 5 that sets out briefly the matters on which the Authority wishes to rely in support of the court making an order other than the order sought in the application; and (b) must include with that statement an affidavit in accordance with Form 2. (2D) As soon as practicable before the court hearing, the applicant, or applicants, may file with the court a reply to statement filed under subregulation (2C), being a reply that: (a) is in accordance with Form 6; and (b) includes an affidavit in accordance with Form 2. (2E) An order made by the court must be in accordance with Form 8. (3) The court may make the order only if it is satisfied that: (a) the Central Authority of the Convention country has agreed to the adoption of the child; and (b) the State Central Authority of the State in which the applicant or applicants habitually reside has agreed to the adoption of the child; and (c) the child is allowed to reside permanently in Australia. (4) However, the court must not make the order if the child is not in Australia. (5) For paragraph (3) (c), a child is not allowed to reside permanently in Australia if the child is affected by a law of the Commonwealth, or of a State, or by an order of a Commonwealth or State court, the effect of which is to prevent the child from so residing Note 1 This regulation does not necessarily apply to all States -- see regulation 34. Note 2 If a child to whom an application relates enters Australia before the application is determined, thechild may be subject, while the application is being considered, to the Immigration (Guardianship of Children) Act 1949. Legislation of the State in which an application is made may also have consequences for the child concerned.
As I have noted above, in Application of MGO and AAO; Re LDC Brereton J listed 10 requirements in [5]-[14], which his Honour deduced from Re S (No 2) at [74]-[79]. I will set out the 10 requirements, with some commentary that I think is warranted.
Brereton J started in [5] as follows: [5] First, that for the purposes of the Regulation, the child was habitually resident in a Convention country when the Convention was invoked (leading to permission being given for the child to leave his or her State of origin and to enter and reside permanently in the receiving State) [Regulation 15(1)].
Proof of this first requirement should be straightforward. Then: [6] Secondly, that the prospective adoptive parents are persons who are habitually resident in Australia [reg 15(1)].
This requirement should also be capable of proof by direct evidence from the applicants. Next: [7] Thirdly, that the arrangements for the adoption were made in accordance with the Convention [reg 15(1)(a)]. Relevantly, that requires that the Department (as NSW Central Authority) prepare and supply to the Inter-Country Adoption Board of the Philippines (as the Central Authority of the State of Origin) the report required by Art 15 of the Convention; and that the Inter-Country Adoption Board of the Philippines as Central Authority for that State prepare and transmit to the NSW Central Authority a report in conformity with Art 16 of the Convention.
Brereton J's third requirement suggests that proof that the arrangements for the adoption were made in accordance with the Convention will be satisfied by proof that the Department and the Philippines equivalent have prepared the reports required by Art 15 and Art 16 of the Convention respectively. That, with respect, depends upon a narrow meaning being given to the word "arrangements" as it applies to reg 15(1)(a).
It may be noted that Form 3 in Schedule 3 to the Regulations (which is the form for making an application for an adoption order under reg 15) requires that the reports that are prepared in accordance with Arts 15 and 16 of the Convention be attached to the application. That requirement may be intended to suggest that the reports have a particular significance for the purposes of determining the application, but it does not follow that the contents of the reports will establish that everything required by the Convention has occurred.
Articles 15 and 16 of the Convention are part of Chapter IV, which is headed "Procedural Requirements in Intercountry Adoption". It is also necessary to have regard to Arts 4 and 5, 14 and 16 to 20. Article 4 An adoption within the scope of the Convention shall take place only if the competent authorities of the State of origin - (a) have established that the child is adoptable, (b) have determined, after possibilities for placement of the child within the State of origin have been given due consideration, that an intercountry adoption is in the child's best interests, (c) have ensured that (1) the persons, institutions and authorities whose consent is necessary for adoption, have been counselled as may be necessary and duly informed of the effects of their consent, in particular whether or not an adoption will result in the termination of the legal relationship between the child and his or her family of origin, (2) such persons, institutions and authorities have given their consent freely, in the required legal form, and expressed or evidenced in writing, (3) the consents have not been induced by payment or compensation of any kind and have not been withdrawn, and (4) the consent of the mother, where required, has been given only after the birth of the child, and (d) have ensured, having regard to the age and degree of maturity of the child, that (1) he or she has been counselled and duly informed of the effects of the adoption and of his or her consent to the adoption, where such consent is required, (2) consideration has been given to the child's wishes and opinions, (3) the child's consent to the adoption, where such consent is required, has been given freely, in the required legal form, and expressed or evidenced in writing, and (4) such consent has not been induced by payment or compensation of any kind. Article 5 An adoption within the scope of the convention shall take place only if the competent authorities of the receiving State - (a) have determined that the prospective adoptive parents are eligible and suited to adopt, (b) have ensured that the prospective adoptive parents have been counselled as may be necessary, and (c) have determined that the child is or will be authorised to enter and reside permanently in that State. Article 14 Persons habitually resident in a Contracting State, who wish to adopt a child habitually resident in another Contracting State, shall apply to the Central Authority in the State of their habitual residence. Article 15 (1) If the Central Authority of the receiving State is satisfied that the applicants are eligible and suited to adopt, it shall prepare a report including information about their identity, eligibility and suitability to adopt, background, family and medical history, social environment, reasons for adoption, ability to undertake an intercountry adoption, as well as the characteristics of the children for whom they would be qualified to care. (2) It shall transmit the report to the Central Authority of the State of origin. Article 16 (1) If the Central Authority of the State of origin is satisfied that the child is adoptable, it shall - (a) prepare a report including information about his or her identity, adoptability, background, social environment, family history, medical history including that of the child's family, and any special needs of the child, (b) give due consideration to the child's upbringing and to his or her ethnic, religious and cultural background, (c) ensure that consents have been obtained in accordance with Article 4, and (d) determine, on the basis in particular of the reports relating to the child and the prospective adoptive parents, whether the envisaged placement is in the best interests of the child. (2) It shall transmit to the Central Authority of the receiving State its report on the child, proof that the necessary consents have been obtained and the reasons for its determination on the placement, taking care not to reveal the identity of the mother and the father if, in the State of origin, these identities may not be disclosed. Article 17 Any decision in the State of origin that a child should be entrusted to prospective adoptive parents may only be made if - (a) the Central Authority of that State has ensured that the prospective adoptive parents agree, (b) the Central Authority of the receiving State has approved such decision, where such approval is required by the law of that State or by the Central Authority of the State of origin, (c) the Central Authorities of both States have agreed that the adoption may proceed, and (d) it has been determined, in accordance with Article 5, that the prospective adoptive parents are eligible and suited to adopt and that the child is or will be authorised to enter and reside permanently in the receiving State. Article 18 The Central Authorities of both States shall take all necessary steps to obtain permission for the child to leave the State of origin and to enter and reside permanently in the receiving State. Article 19 (1) The transfer of the child to the receiving State may only be carried out if the requirements of Article 17 have been satisfied. (2) The Central Authorities of both States shall ensure that this transfer takes place in secure and appropriate circumstances and, if possible, in the company of the adoptive or prospective adoptive parents. (3) If the transfer of the child does not take place, the reports referred to in Articles 15 and 16 are to be sent back to the authorities who forwarded them. Article 20 The Central Authorities shall keep each other informed about the adoption process and the measures taken to complete it, as well as about the progress of the placement if a probationary period is required.
As the report that Art 15 requires the Central Authority of the receiving State to prepare will be in evidence, then the court should be able to determine that the requirements of Art 15 have been satisfied by inspecting the report, to ensure that in substance it contains the required information. If it does, then the requirement in Art 5(a) that the competent authorities of the receiving State have determined that the prospective adoptive parents are eligible and suited to adopt should also be established (because this requirement overlaps a topic required to be dealt with in the report). The report is not, however, required to deal with the requirement in Art 5(b) that the competent authorities of the receiving State have ensured that the prospective adoptive parents have been counselled as may be necessary. That requirement can be proved by separate evidence. Nor is the report required to show that the competent authorities of the receiving State have determined that the child is or will be authorised to enter and reside permanently in that State, as is required by Art 5(c). It should be a simple matter for the applicants to provide evidence to establish this requirement, separately from the report itself.
The report that Art 16(1)(a) requires the Central Authority of the State of origin to prepare will include information about the child's identity, adoptability, background, social environment, family history, medical history including that of the child's family, and any special needs of the child. However, Art 16 imposes the additional obligations upon the Central Authority of the State of origin that are set out in sub-pars (b)-(c). That is, Central Authority must give due consideration to the child's upbringing and to his or her ethnic, religious and cultural background. It must ensure that consents have been obtained in accordance with Article 4. It must determine, on the basis in particular of the reports relating to the child and the prospective adoptive parents, whether the envisaged placement is in the best interests of the child. The Convention requires all of the arrangements listed in par 98 above (if applicable) to be made in the State of origin.
Article 16(2) requires not only that the report prepared in accordance with Art 16(1)(a) be transmitted to the Central Authority of the receiving State, but that the Central Authority of the State of origin also provide "proof that the necessary consents have been obtained and the reasons for its determination on the placement, taking care not to reveal the identity of the mother and the father if, in the State of origin, these identities may not be disclosed". If that proof is included in the report, notwithstanding that Art 16(1)(a) does not require that information to be included in the report, then the arrangements required by Art 14 and 16 will be established by proof of the report and its delivery to the Central Authority of the receiving State. In that case I would respectfully agree that Brereton J's third requirement would be satisfied by proof of the report prepared by the Central Authority of the State of origin. However, I would differ from Brereton J, if the report only contained the information required by Art 16(1)(a). In that case it would be necessary for there to be proof that all of the other arrangements listed in par 98 above had been made. The making of those arrangements may be proved if the further proof required by Art 16(2) has been provided to the Central Authority of the receiving State.
The next requirement identified by Brereton J concerns compliance with reg 15(1)(b): [8] Fourthly, that the arrangements for the adoption were made in accordance with the laws of New South Wales so far as they relate to the adoption of children from a Convention country [reg 15(1)(b)].
Strictly, as White J found, it is necessary to establish that the "arrangements for the adoption" have been made in accordance with the law of New South Wales. I have identified the relevant arrangements for adoption above in par 94. As those matters will have happened within the State, they should be capable of proof to the satisfaction of the court by direct evidence. The court will satisfy itself that the arrangements are in accordance with the law of the State. It should be possible for the applicants to augment the evidence if the court finds that it is inadequate.
The next requirement identified by Brereton J concerns the application of reg 15(1)(c), which requires that arrangements for the adoption be made in accordance with the laws of the Convention country, meaning the State of origin. [9] Fifthly, that the arrangements for adoption were made in accordance with the laws of the [Convention country] [reg 15(1)(c)].
I have identified above in par 98, 14 arrangements for adoption within the State of origin that can be derived from the Convention.
In the circumstances considered by Brereton J his Honour found that reg 15(1)(c) had been satisfied for the following reason: [9] There is in evidence a judgment of the Regional Trial Court of the National Capital Judicial region committing the child to the care and custody of the Filipino Department of Social Welfare and Development, to act as her legal guardian, and conferring on that Department authority to give consent to her placement, guardianship and adoption, and I would be prepared to accept this as sufficient evidence that the arrangements were made in accordance with the laws of the Philippines.
As I have noted above, in Re S (No) 2 White J was also assisted in being able to find that reg 15(1)(c) was satisfied in the case before him, because a court in the State of origin had made orders which his Honour considered were sufficient to establish that the arrangements for adoption in the State of origin were in accordance with the laws of that State.
In cases such as the present, in which no court in the State of origin has made orders in the adoption process that permit the inferences made by Brereton J and White J to be drawn, but the arrangements have been implemented as an administrative matter, it will be necessary to consider how the court might be satisfied that reg 15(1)(c) has been satisfied. In most cases it will be quite unrealistic to expect the applicants for the adoption order to be able to prove at all, let alone in any comprehensive way, that the arrangements required by the Convention to be undertaken in the State of origin are in accordance with the laws of that place.
The question is: in what circumstances may the court be satisfied that all of the arrangements for adoption that the Convention requires be made in the State of origin have been made in accordance with the law of that State?
The principle of private international law that the court will presume, in the absence of evidence to the contrary, that foreign law is the same as the law of the forum, will not assist in resolving the present problem, because the general presumption does not apply where the foreign law must be proved affirmatively, such as that service has been effected in accordance with the law of a foreign country: BP Exploration Co (Libya) Ltd v Hunt [1980] 1 NSWLR 496 at 503 [25]-[26] per Hunt J.
In fact, if reg 15(1)(c) is applied literally, the principles of private international law would have a very burdensome consequence. Proof of the content of the applicable laws of the State of origin would be a matter of fact requiring expert evidence (perhaps augmented by ss 174 and 175 of the Evidence Act 1995 (NSW)), but the issue of whether the arrangements for adoption were in accordance with that law would be a question of law for the court: see National Mutual Holdings Pty Ltd v Sentry Corporation (1989) 22 FCR 209 per Gummow J at 226, following United States Surgical Corporation v Hospital Products International Pty Ltd (Supreme Court of New South Wales, McLelland J, 19 April 1982, unreported).
Analysis of the evidence provided by the Inter-Country Adoption Board of the Philippines in accordance with Art 16(2) of the Convention proves reasonably clearly that the required arrangements have been made in fact, but the evidence says little about whether the arrangements comply with the law of the Philippines.
The evidence consists of a letter dated 22 February 2012 from the Inter-Country Adoption Board to the Department, which attaches a formal Placement Proposal and a Child Study Report dated 13 July 2011, and the Progress Report dated 9 February 2012 that appear to have been prepared by the orphanage that cared for FGG. The Board has clearly adopted the reports. There is a deed of voluntary commitment dated 15 November 2010, which has been executed by the birth mother's maternal aunt and uncle. The deed purports voluntarily to commit FGG to the care and custody of the Department of Social Welfare and Development of the Philippines "pursuant to Presidential Decree No. 603 and Republic Act 8552". On its face the deed suggests that the requirements of Arts 4 and 16(1)(c) concerning consent to the adoption have in part been satisfied. There is also an Affidavit of Consent to Adoption sworn on 25 October 2013 by an undersecretary of the Philippines Department, which provides evidence as to the balance of the required consent. By that affidavit the Philippines Department consents to the adoption of FFG by the present applicants in accordance with Republic Act 9523 sec 8, the Inter-Country Adoption Act of 1995 and s 50 of the Rules and Regulations under the last-mentioned act. The documents show that the other arrangements listed in par 100 above have in fact been made.
Unsurprisingly, the evidence does not disclose the terms of the statutes referred to in the Philippines documents, and there is no reference at all to the laws that govern the activities of the Inter-Country Adoption Board generally in relation to the making of the arrangements for adoption required by the Convention.
Nonetheless, a review of the documents justifies confidence, albeit implicitly, that the competent authorities in the Philippines have acted meticulously in accordance with what they perceived were the requirements of the law.
As I have noted above, the Convention itself does not require the Central Authority of the State of origin to provide to the Central Authority of the receiving State proof that all of the required arrangements for adoption have been made in accordance with the law of the State of origin. It is arguably implicit in the fact that Art 16(2) only requires the transmission of its report and proof that the necessary consents have been obtained and the reasons for its determination on the placement, that compliance with the local law is intended to be a matter for the State of origin, and not the receiving State. It is the terms of reg 15(1)(c) that require that it be established that the arrangements for adoption are in accordance with the laws of the State of origin.
Article 21 of the Convention provides for alternative measures for the protection of the child where "it appears to the Central Authority of [the receiving State] that the continued placement of the child with the prospective adoptive parents is not in the child's best interests". No provision is made in the Convention for a situation where a court in the receiving State declines to make an adoption order because it is not satisfied that the arrangements for the adoption made in the State of origin comply with the laws of that State.
In these circumstances I have concluded that reg 15(1)(c), on its proper interpretation, does not require the court to engage in the process of positively satisfying itself that all applicable laws of the State of origin have been satisfied in relation to the making of all arrangements for adoption required by the Convention to be made in that State. Just as White J in Re S (No 2) was guided in determining the meaning of "arrangements for adoption" by the consideration that the purpose of the Regulations is to implement the Convention in Australia, I am entitled to have regard to the apparent intention of the Convention in determining what reg 15(1)(c) requires. It is that the court is satisfied, as a matter of fact, that the arrangements for adoption that are required by the Convention to be made in the State of origin have been made substantially in accordance with the laws of that State. For that purpose inferences of compliance can be drawn from the whole of the evidence, and in particular the material provided by the Central Authority of the State of origin in compliance with Art 16(2) of the Convention. It is not necessary for the court to determine that complete compliance has occurred as a question of law.
The real question is not whether the court (being a court in the receiving State) is independently satisfied as a matter of law that all applicable adoption arrangements are in accordance with the law of the State of origin, but is whether as a matter of fact the relevant court in the State of origin would be satisfied that the State's laws were satisfied. That question of fact is to be decided on the balance of probabilities.
In my view, provided care is taken, the court dealing with the application for adoption can rely upon the presumption of regularity. There are unresolved issues of principle about the boundaries within which resort can be had to a presumption of regularity. I do not suggest that resort may be had to a presumption of regularity as a universal panacea to remedy any apparent defects in proof that reg 15(1)(c) has been satisfied. The issue arises in the context of the application of the Convention, to which Australia is a signatory, as will be the State of origin. It is legitimate to proceed upon the presumption that each State and its competent authorities will honour their obligations under the Convention. Furthermore, the suggestion that the court is entitled to rely upon the presumption of regularity is made only in the context that the court will have before it the report compiled by the Central Authority of the State of origin, and also the other evidence required to be provided by Art 16(2). That evidence, as in this case, upon careful scrutiny is likely to persuade the court that the competent authorities of the State of origin have solemnly and carefully complied with what they understand to be the requirements of the law of that State. That evidence is likely to engender confidence that the law of that State concerning the arrangements for adoption have been complied with, even if specific evidence concerning whether each and every one of the 14 requirements (if applicable) has been undertaken, and undertaken in accordance with the law of the State of origin, is absent or elusive. It is in that context that the presumption of regularity may legitimately underpin the conclusion that reg 15(1)(c) has been satisfied.
In Carpenter v Carpenter Grazing Co Pty Ltd (1987) 5 ACLR 506 at 514, Hope JA (with whom Samuels and Priestley JJA agreed) said: For the defendants it has been submitted that the presumption of regularity applies only when there is no evidence as to the fact in question. As I understand it, the true rule is that the presumption may reasonably be drawn where an intention to do some formal act is established, when the evidence is consistent with that intention having been carried into effect in a proper way, the observance of the formality has not been proved or disproved and its actual observance can only be inferred as a matter of probability"
In the same year, in Hill v Woollahra Municipal Council (1987) 9 NSWLR 154, Kirby P at 156 agreed with the reasons of Clarke JA at 169 that it was proper to apply a presumption of regularity. McHugh JA at 164 separately said: In my opinion, this was a classic case for the application of the maxim whose rationale was explained by Lord Simonds in Morris v Kanssen [1946] AC 459, a company case, where his Lordship said (at 475): "… One of the fundamental maxims of the law is the maxim 'omnia praesumuntur rite esse acta'. It has many applications … The wheels of business will not go smoothly round unless it may be assumed that that is in order which appears to be in order." The natural home of the maxim is public law. Where a public official or authority purports to exercise a power or to do an act in the course of his or its duties, a presumption arises that all conditions necessary to the exercise of that power or the doing of that act have been fulfilled. Thus a person who acts in a public office is presumed to have been validly appointed to thatoffice:M'Gahey v Alston (1836) 2 M & W 206 at 211; 150 ER 731 at 733; R v Brewer (1942) 66 CLR 535 at 548; Hardess v Beaumont [1953] VLR 315 at 318-319. And a council which must form an opinion as to whether there will be any detriment upon the granting of a planning permit is presumed to have formed the opinion before granting the permit: Pearce v City of Coburg [1973] VR 583. The maxim was applied in a statutory context in this Court in Western Stores Ltd v Orange City Council [1971] 2 NSWLR 36 where objection was taken to the validity of the imposition of "parking area rates" on the ground that the resolutions, which imposed the rates, did not recite that in the opinion of the Council certain works or services would be of special benefit to the areas rated. The formation of such an opinion was a pre-requisite to thevalid exercise of the power to make the rate under the Local Government Act 1919, s 121. Moffitt JA, giving the judgment of the Court, applied the maxim. His Honour said (at 46-47): "… as the case is one where the opinion required by s 121(1) was open to be held, it is to be presumed, in default of reason to conclude to the contrary, that the rate was regularly made and therefore was made upon the prerequisite opinion having been formed … In applying thepresumption I do not think that any distinction should be drawn between the exercise of a power by an individual and the exercise of such power by a body or group which acts by way of resolution, or vote." A particular application of the maxim which is relevant to this case is stated in Broom's Legal Maxims, 10th ed (1939) at 642 as follows: "… where acts are of an official nature, or require the concurrence of official persons, a presumption arises in favour of their due execution. In these cases the ordinary rule is omnia praesumuntur rite et solenniter esse acta donec probetur in contrarium - everything is presumed to be rightly and duly performed until the contrary is shown."
Finally, in Darley Australia Pty Ltd v Walfertan Processors Pty Ltd [2012] NSWCA 48, McColl JA said, with the agreement of Macfarlan and Whealy JJA: [114] The presumption of regularity has been described as both a "rebuttable presumption of law" (Cross on Evidence, LexisNexis Butterworths, at [1175]) and "a presumption of fact, associated with a reasonable inference based on what ordinarily happens in the ordinary course of human affairs" (Hill v Woollahra Municipal Council[2003] NSWCA 106; (2003) 127 LGERA 7 (at [52]) per Hodgson JA (Ipp JA and Davies AJA agreeing)), whose "natural home … is public law": Minister for Natural Resources v NSW Aboriginal Land Council (1987) NSWLR 154 (at 164) per McHugh JA. [115] The presumption of regularity has also been described as one which "arises from the ordinary course of business", being "a rule of very general application, that where an act is done which can be done legally only after the performance of some prior act, proof of the later carries with it a presumption of the due performance of the prior act": McLean Bros & Rigg Ltd v Grice [1906] HCA 1 ; (1906) 4 CLR 835 (at 850) per Griffith CJ (Barton and O'Connor JJ agreeing), citing Knox County v Ninth National Bank 147 US 91 (1893). In Minister for Natural Resources v NSW Aboriginal Land Council (at 164) McHugh JA explained its operation in the public law context as follows: Where a public official or authority purports to exercise a power or to do an act in the course of his duties, a presumption arises that all conditions necessary to the exercise of that power or the doing of that act have been fulfilled. [116] In deciding whether the presumption of regularity is rebutted, the inference from the ordinary course of human affairs carries some weight which may vary according to the proved circumstances: Hill v Woollahra Municipal Council (at [52]). In this respect, in my view, Windeyer J's remarks in Brickworks Ltd v Warringah Corporation remain cogent: The giving or refusing of a consent, as required by the Ordinance, was an important discretion entrusted to the Council as the 'responsible authority'. It is not to be assumed that the Council and its officers neglected their duties or discharged them in a perfunctory manner. [117] There is authority to the effect that the presumption of regularity applies "only to matters of form, rather than of substance", a proposition which may not be consistent with earlier decisions of this court: see the discussion in GPT RE Ltd v Belmorgan Property Development Pty Ltd; [2008] NSWCA 256; (2007) 72 NSWLR 647 (at [82]) per Basten JA (Bell JA and Young CJ in Eq agreeing). Such authority would also be inconsistent with Brickworks Ltd v Warringah Corporation in which the presumption of regularity was applied to conclude that a council had given consent for land to be used to extract minerals.
There are many other decisions of appeal courts that consider the presumption of regularity, often in very specific contexts, and I have limited references to the above decisions of the Court of Appeal, as they illuminate the breadth of possible application of the presumption. I have noted the observation by McColl JA at [117], that there is authority to the effect that the presumption of regularity applies only to matters of form, rather than of substance. I have respectfully concluded that her Honour is correct when she suggests that that proposition may not be consistent with earlier decisions of the Court of Appeal. In my view those decisions show that the presumption of regularity is apt to be applied in the limited circumstances that I suggest in the present case, in relation to the steps taken by the competent authorities, including the courts, of the State of origin to implement the arrangements for adoption under the laws of that State.
It appears, I respectfully suggest, that both White J in Re S (No 2) and Brereton J in Application of MGO and AAO, in fact applied a presumption of regularity without expressly articulating that approach. Where the court has evidence that a court in the State of origin, with apparent jurisdiction to make the order, has made an order vesting authority to give consent to the adoption of a child in a particular government department, and that department has participated with other competent authorities to implement what appears to be the arrangements for adoption required by the law of that State, this court is entitled to have some confidence that the laws of the State of origin have been satisfied. However, proof of the judgment of the court of the State of origin, and the steps taken by the other competent authorities, will usually not constitute specific proof that all of the arrangements for adoption accord with the law of the State of origin. Reliance upon the judgment of the court, and the formal steps taken by the relevant competent authorities, is an aspect of the application of a presumption of regularity.
Next, Brereton J suggested the following requirement: [10] Sixthly, that notice of the application has been given to the NSW Central Authority [reg 15(2B)]. In this case, I would be prepared to infer that such notice has been given, from the filing of an affidavit by the A/Director, Adoption and Permanent Care Services, but ordinarily this should be formally proved.
Brereton J, in the case before him, inferred that notice had been given to the Department because an affidavit in support of the application had been sworn by an officer of the Department, and filed, but he said that ordinarily this requirement should formally be proved.
I will merely list, for completeness, the last four requirements identified by Brereton J. These each involve matters of fact, which ordinarily should be proved by direct evidence. [11] Seventhly, that the Inter-Country Adoption Board for the Philippines, a Central Authority of that country, has agreed to the adoption of the child [reg 15(3)(a)]. [12] Eighthly, that the NSW Department has agreed to the adoption of the child [reg 15(3)(b)]. [13] Ninthly, that the child is allowed to reside permanently in Australia [reg 15(3)(c)]. [14] Tenthly, that the child is in Australia [reg 15(4)].
I therefore have made the orders sought by the applicants in their application, except for the orders concerning the requirement for giving notice to, and dispensing with the consent of, the natural parents.

BP Exploration Co (Libya) Ltd v Hunt

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